order of the inter-american court of human rights november 26, 2010 ...

ORDER OF THEINTER-AMERICAN COURT OF HUMAN RIGHTSNOVEMBER 26, 2010PROVISIONAL MEASURESREGARDING THE REPUBLIC OF PERUCASE OF WONG HO WINGHAVING SEEN:1. The Order of the Acting President of the Inter-American Court of Human Rights 1 ,(hererinafter “the Inter-American Court,” or “the Court”) dated March 24, 2010, rulinginter alia to require the Republic of Peru (hereinafter “the State” or “Peru”) to abstainfrom extraditing Mr. Wong Ho Wing, as long his request for provisional measuresremained pending before the Inter-American Court.2. The May 28, 2010, Order of the Court requiring the State to “refrain fromextraditing Mr. Wong until December 17, 2010, in order to allow the Inter-AmericanCommission on Human Rights to examine and rule on application P-366-09, filedbefore the Commission on March 27, 2009.” 23. The brief of September 27, 2010, in which the State submitted informationrelated to the provisional measures and requested that the Court require therepresentative of Mr. Wong Ho Wing to, inter alia, refrain from “maliciously andirresponsibly using domestic resources to block the administration of justice [...] withthe intention of impeding the State from adopting the measures necessary to preventthe eventual extradition of the petitioner from becoming illusory or ineffective.” It alsoindicated that “if [the beneficiary] opts to continue requesting domestic constitutionaland jurisdictional protection, it will be understood to have nullified the request forprovisional measures.”1Judge Diego García-Sayán, of Peruvian nationality, recused himself from this matter, pursuant toArticle 19 of the Statute and Article 21 of the Rules of Procedure of the Court. The Court accepted hisrecusal. For this reason, Judge García-Sayán ceded the Presidency under the terms of Article 4(2) of theRules of Procedure to the Vice President of the Court, Judge Leonardo A. Franco, who is the acting Presidentin this matter.2Matter of Wong Ho Wing, Request for Provisional Measures with regard to the Republic of Peru.Order of the Inter-American Court of Human Rights dated May 28, 2010, Operative Paragraph 10.

24. The October 1, 2010, brief in which the Inter-American Commission on HumanRights (hereinafter “the Inter-American Commission” or “the Commission”) rejectedthe State’s request and indicated that its opinions “on the procedural conduct of thebeneficiary do nothing to change the legal basis of the request and the granting of theprovisional measures.”5. The communication from the Secretariat of the Court of October 19, 2010,which, following the instructions of the acting President, stated that the State’s requestwould be considered by the Inter-American Court during the 89th Ordinary Period ofSessions, to be held in the seat of the Court from November 22th to 26 th , 2010.6. The November 11, 2010, brief in which the Inter-American Commissioninformed the Court of the November 1, 2010, passage of Admissibility Report No.151/10 on application 366-09. The Commission also provided information indicatingthat in keeping with Article 37 of the Rules of Procedure, on November 9, 2010, theCommission notified the parties about this report and granted the petitioners a periodof three months to present additional observations on the merits. Once presented,these observations will be forwarded in order for the State to present its commentswithin a similar period of time. Finally, the Commission “repeat[ed] its argumentsregarding extreme gravity and urgency, the need for preventing irreparable damage tothe beneficiary, and the consequent need for these provisional measures to remain inforce until the bodies of the inter-American system issue a final ruling on the case.”7. The communication from the Secretariat of the Court dated October 12, 2010,which, following the instructions of the acting President, requested comments fromPeru on the information provided by the Commission and stated that the Commission’srequest would be considered by the Court during its 89 th Regular Period of Sessions.8. The November 18, 2010, brief in which Peru requested a hearing or workingmeeting with the Court prior to the adoption of a ruling on the Inter-AmericanCommission’s request, as well as an extension of the deadline for presentingcomments on the request. An extension of the deadline until November 22, 2010, wasgranted.9. The brief of November 22, 2010, and its annexes in which Peru stated, interalia, that: a) the Commission “is using the figure of [provisional measures] as a quickway of getting a ‘kind of solution’ to the legal conflicts under its consideration,”resulting in “a situation of abuse of a request for provisional measures, since they havebeen proposed without a time limit, without reservations, contradicting the provisionsof the Court’s Order for Provisional Measures”; b) by virtue of the Commission’s failureto issue a report on the merits, the State argues that “one of the essential elementsfor moving forward and/or continuing the protective measures - that being the urgencyof the situation - has disappeared as a result of the actions of the Commission itself”;c) the deadlines for processing the case before the Commission could result in “anexcessive delay in the processing of the [...] case before the supranational instances,thus contradicting the allegation that the situation is urgent”, and d) in particularcircumstances, Peruvian legislation and the Extradition Treaty between Peru and thePeople’s Republic of China, permits the country in which the extradition is requested togive the country requesting the extradition the option of an extraditurus trial beforethe lower court and under its laws, “with the intention of preventing impunity for thecrime committed by the individual whose extradition is being requested.” Also, it askedthe Court to request from Mr. Wong Ho Wing “a commitment to forfeit prior procedural

3defenses such as statute of limitations” and reject the Commission’s request due to itslack of one of the elements required to grant it.10. The November 22, 2010, brief and its annex, in which the Inter-AmericanCommission submitted a communication to the Court from Mr. Wong Ho Wing,requesting the provisional measures be broadened.CONSIDERING THAT:1. Peru ratified the American Convention on July 28, 1978, and, in accordancewith Article 62 of the Convention, recognized the contentious jurisdiction of the Courton January 21, 1981.2. Article 63(2) of the American Convention holds that, “[i]n cases of extremegravity and urgency, and when necessary to avoid irreparable damage to persons, theCourt shall adopt such provisional measures as it deems pertinent in matters it hasunder consideration. With respect to a case not yet submitted to the Court, it may actat the request of the Commission.”3. Article 27 of the Rules of Procedure of the Court holds, inter alia, that:1. At any stage of proceedings involving cases of extreme gravity and urgency,and when necessary to avoid irreparable damage to persons, the Court may, on itsown motion, order such provisional measures as it deems appropriate, pursuant toArticle 63(2) of the Convention.2. With respect to matters not yet submitted to it, the Court may act at therequest of the Commission.[..]5. The Court, or if the Court is not sitting, the Presidency, upon considering that itis possible and necessary, may require the State, the Commission, or therepresentatives of the beneficiaries to provide information on a request forprovisional measures before deciding on the measure requested.4. The Court recalls that these provisional measures were granted at the requestof the Inter-American Commission in the context of application P-366-09. Thisapplication was declared admissible through report No. 151/10, dated November 1,2010, with regard to Articles 4 (Right to Life), 5 (Right to Humane Treatment [PersonalIntegrity]), 7 (Right to Personal Liberty), 8 (Fair Trial) and 25 (Judicial Protection), ofthe American Convention in relation to Article 1(1) (Obligation to Respect Rights) ofthe Convention 3 . The Court takes note of the information provided by the Inter-American Commission with regard to the status of the proceeding and the parties’deadlines to submit information on the merits of the matter (supra Having Seen 6).5. Likewise, the Court recalls that this case is before the Inter-AmericanCommission and that the adoption of these provisional measures was ordered only forthe purpose of “allowing the Commission to examine and rule on application P-366-3Report on Admissibility No. 151/10 dated November 1, 2010, para. 46.

409.” Thus the Court did not stipulate that it would examine this matter while it isbefore the Commission, nor did it request the parties to submit information on theprogress of domestic remedies or the extradition proceeding.6. Nevertheless, the State and the Commission have submitted information andmade several requests of the Court with regard to these provisional measures. Giventhe request by the Commission for an extension of these provisional measures and therequest by the State for a hearing (supra Having Seen clauses 6 and 8), the Courtfinds it appropriate to call a public hearing during the next Regular Period of Sessions,which will take place from February 21 to March 5, 2011, with the purpose of receivingarguments from the parties on the pertinence of maintaining these provisionalmeasures. Consequently, the Court rules that these provisional measures remain ineffect until March 31, 2011, under the same terms of its May 28, 2010, order 4 .THEREFORE:THE INTER-AMERICAN COURT OF HUMAN RIGHTS,in the exercise of its powers conferred by Article 63(2) of the American Conventionand Article 27 of the Rules of Procedure,DECIDES TO:1. Convene the Inter-American Commission on Human Rights, the Republic ofPeru, and the legal representative of the beneficiary to a public hearing, to be held atthe seat of the Inter-American Court of Human Rights during the next Regular Periodof Sessions, which will take place from February 21 to March 5, 2011, with the purposeof hearing the arguments of the parties over the request for an extension of theprovisional measures, in keeping with Considering paragraph 6 in this Order. TheSecretariat will communicate the date and time of the public hearing to the parties in atimely fashion.2. Keep the current provisional measures in effect until March 31, 2011, with thepurpose of allowing the public hearing requested by the State to be held.3. Require the State to refrain from extraditing Mr. Wong Ho Wing until March 31,2011, in keeping with the provisions of this Order and with the terms of the May 28,2010, Order.4. Ask the Secretariat to notify the Inter-American Commission on Human Rights,the Republic of Peru, and the legal representative of the beneficiary of this Order.4Cf. Matter of Wong Ho Wing, Order of the Inter-American Court, supra footnote 1.

5Leonardo A. FrancoActing PresidentManuel Ventura RoblesMargarette May MacaulayRhadys Abreu BlondetAlberto Pérez PérezEduardo Vio GrossiPablo Saavedra AlessandriSecretarySo Ordered,Leonardo A. FrancoActing PresidentPablo Saavedra AlessandriSecretary